sukumar (Software engineer) 16 December 2014

Notice period buyout an option as per indian law?

Hi Team,

I am an employee in an MNC for around four years. Currently I have got an offer from another company with a better role and salary.

The notice period in my current organization states that I got to server for 2 month. However the organization which has offered me is requesting for me to join in 1 month.

I have applied for resignation on 8^th Dec 2014 and the joining date in the offered organization is 7^th Jan 2015.

I spoke to my HR team and my project and they are forcing me to server 2 months of notice and they cannot relieve me before that.

I have requested the project and company to give me a Buyout option where I can pay whatever the compensation is. However they are not ready for that.

Please find the agreement below:

· 1. An Employee shall resign from the services of the company only after serving a written notice of 60 days to the Team /Line / Project Manager showing

reasonable ground for resignation.

· 2. An employee who is under the Service security bond shall be allowed to resign from the services only after the completion of the stipulated period of

service as given in the Security bond. This does not include any cases of Poor Performance / misconduct.

· 3. Any employee leaving the services of CSS Corp without serving the full notice period shall pay equivalent of his/her Gross Salary (fixed components

only) for the unserved portion of the notice period.

· 4. The decision to accept notice pay in lieu of notice period shall be at the discretion of the management influenced by the business conditions and the

employee will have no right to exercise it on his/her free will.

· 5. The decision to waive notice period, under exigency, shall be at the discretion of Director – HR or any other higher authority in HR. The grounds for such

action should be substantially justified and stated clearly in the No Dues form by the competent authority.

With regards to this, I have spoken to my project manager, Director, AVP from operations and HR, HR Manger & HR Director.

HR team is redirecting me to get an approval from operations team. However the operations team is not ready to relieve me on the requested date.

Is there anything legal which can be done to come out of this company on time. Does any law apply in favour of the employees in my case.

Absconding is not an option and I don’t want to do that since it might cause issues with my professional carrier.

Please advise.

Thanks in advance,

Sukumar

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1 Replies

Kumar Doab (FIN) 04 January 2015

1. Like Majority of the employees you are also committing the same error:::: You are surrendering to the wishes of prospective employer without negotiating the offer properly and taking a risk that may disturb you.

The prospective employer may have the rules of joining period of 30 days for incoming employees and say 60 days for outgoing employees....................

Why should you benefit a future employer at your personal loss (that can be more than monetary loss) ....?????

You should have filled current notice period and joining period =60 days in employment application with prospective employer.

At least now you should at least represent in writing to future employer:

----grant joining time of 60 days as your current employer is unwilling to grant waiver of notice period /pay.............................and also acknowledgment and acceptance of notice of resignation/resignation,service certificate,relieving letter,FnF statement, FnF wages.........................and may even charge you with abscondment and effect termination, and even claim loss............................

Ask them to accept in writing that it shall absorb you on the strength of copy of resignation only and shall not demand acknowledgment and acceptance of notice of resignation/resignation,service certificate,relieving letter,FnF statement,salary slips.............and shall buy your notice period.......

2. You must state the notice period being tendered by you/effective date of resignation/last date in office clearly in notice of resignation………………..and download proof/evidence that NO TASKS ARE PENDING AT YOUR END IN CURRENT EMPLOYMENT AND MUST STATE SO IN NOTICE OF RESIGNATION AND SUBSEQUENT COMMUNICATIONS………..

and :

----affirm that correct notice period applicable to you be considered.

----Notice Period/pay in lieu of notice period be waived off

----if not waived off notice pay in lieu of notice period may be adjusted in FnF statement/settlement as per correct notice period applicable to you and original be supplied to you for verification and acceptance within last date in office along with acknowledgment of notice of resignation/resignation and acceptance, service certificate, relieving letter, salary slips of all months, payment of FnF wages by bank DD, Form16 as per correct FnF statement, PF number and a/c slips of each month, ESIC card, NOC/NDC, .etc…………………..within and upto your last date in office i.e. dated………………

----routine duties be assigned to you that can be completed on daily basis within and upto last date in office ………………………and to whom you should handover the charge/company property within and upto last date in office i.e. dated………………… against proper acknowledgment on the spot

----download the HR policy/service rules and regulations mentioned in appointment letter……..and any other policy etc……..

3. Notice Period/pay is part of service conditions and is very well defined in various enactments that are applicable to the establishment and employer and employee e.g;

( Name of the State) Shops and Commercial Establishments Act that was enacted to govern the service conditions of employees working in such establishments…………..the notice period as per this Act is as per length of service and is max.30 days………………..notice pay @.............is also defined in this Act…

Standing Orders : if not certified Model Standing Orders shall apply: You may go thru Sec13-18….

The notice period during probation period is NIL and after confirmation 30 days…..

NO private agreement/policy/rule crafted and drafted by employer can supersede and overrule such enactments these being……………… Act/instrument of law/Statue…………and any service condition inconsistent with these shall not survive….

4. Your employer shall scream that if you do not serve the notice period it shall suffer financial or other losses……………………which you being in the system can counter……………and you should not leave any room for the employer to charge you for having caused any loss …….

5. Your employer would love to scream that you are not covered by any of these enactments and by not serving the full notice period you have absconded and this is misconduct and hence you are not properly relieved……

6. The employees in your sector have been facing such issues and such issues can be effectively handled thru Employee’s Unions/Trade Unions……………….

Are you aware that :

--IT employees in Tamilnadu have also formed another new Unions FITE, and employees in other states have already formed unions…………….and trade unions are willing to embrace them.

--In Karnataka it is mandatory to form GRC ( Grievance Redressal Committee) that shall have equal number of employees……………

In Kerala are commercial establishments are covered by standing orders….

You should approach an able Labor Law Consultant/Service Matters Lawyer with copies of all docs on record ASAP and proceed under your lawyer’s expert advice……